Long way home

27 April 2012

Without extensive reforms to India’s Kafkaesque immigration laws, ‘goodwill’ pardons only hide the plight of illegal immigrants languishing in prisons.

The past year has seen a surge in the authorised release and repatriation of foreign prisoners – the majority of whom are convicted illegal immigrants from neighbouring Southasian states – by India, Pakistan and Bangladesh. Analysts have construed these releases as diplomatic ‘goodwill gestures’ that strengthen regional relations. But calling the releases ‘goodwill gestures’ is somewhat simplistic and misleading. Such acts certainly generate political capital, but they rely on the use of either presidential pardon or judicial orders in cases where the ordinary legal procedures have failed to treat immigrants and foreign prisoners fairly. One good example is the Indian Supreme Court’s order on 24 January 2012, in the long-standing case of Bhim Singh vs Union of India, to immediately release and repatriate Pakistani and Bangladeshi prisoners who were being held past their sentences due to procedural confusion over their exact diplomatic status. Such magnanimous gestures may prove to be important diplomatic tools, but it is imperative to recognise that they stem from outside the ordinary legal process. They are sporadic and their success is contingent on the prevailing political climate. Celebrating such instances of ‘goodwill’ deflects attention from the larger problem that put most of these prisoners behind bars in the first place: Southasian states’ continued inability to deal effectively with illegal immigration.

An overview of the Foreigners Act of 1946 reveals just how systemic and deeply rooted the problem of illegal immigration is in India. Under the Act, it is illegal for any person who is not an Indian citizen to be present in India without the necessary permission or documentation. Where nationality cannot be determined, Indian authorities can treat foreigners as nationals of the country they are ‘most closely connected’ to. If anyone disagrees with the nationality assigned to them, they must then provide proof of their nationality. Any foreign national found to enter or remain in India illegally may be prosecuted, and if convicted can be fined and imprisoned for up to 8 years.* The Act also allows the Indian government to deport, expel and refuse entry to any foreigner.

The Act is rooted in the politics of pre-Partition India, and in today’s context it is both antiquated and defective. At best, it is out of sync with current realities; at worst, it is harsh and unconstitutional. There are at least three identifiable areas of concern.

First, the Act takes the legally permissible but practically onerous step of reversing the burden of proof, thereby compelling suspects – not the State – to prove their nationality. That reversal can be justified in instances where the accused can be shown to possess the best information to prove the contested fact, but it follows that where that is true there should be procedural safeguards to ensure due process and fairness. Yet the Foreigners Act has very few checks and balances against the authorities’ power to ascribe nationality. At the same time, the Indian Supreme Court has affirmed the government’s ‘unfettered discretion’ to expel foreigners from India. Suspected foreigners are asked to prove their claims of Indian citizenship with official documentation such as passports or electoral registration cards. The reality, however, is that the overwhelming majority of people likely to be affected by this law are poor and do not possess such documents. These include fishermen on India’s western seaboard who sail the territorial waters of both India and Pakistan, people living along India and Bangladesh’s porous and largely undefined border for whom regular crossings between the two countries are a fact of life, or even undocumented domestic migrants who find their way to large cities. These people are acutely vulnerable to harassment by police accusing them of being illegal immigrants. For instance, a ‘clean-up’ campaign in preparation for the 2010 Commonwealth Games in New Delhi saw poor immigrants, including Indian Muslims mistakenly identified as such, summarily deported to Bangladesh with little regard to due process. Disturbingly, the New Delhi authorities were acting within the powers conferred upon them by the Foreigners Act.

Second, the Act opens gaping legal and procedural loopholes. It is illogical and self-defeating to punish people for ‘illegal entry/stay in India’ by imprisoning them on Indian soil, particularly in light of the government’s wide powers of deportation. It would be far more sensible to deport illegal immigrants of confirmed nationality back to their home countries. There is also no clarity as to when or on what grounds the government may decide between deporting the immigrant and referring the matter to the courts for prosecution. Nor are there any safeguards against the abuse of government discretion, particularly in cases involving Indian minority groups. At present, neither Parliament nor the judiciary has addressed these inconsistencies.

Third, Indian authorities routinely detain people on the pretext of completing repatriation formalities by relying on certain provisions in the Act which, for instance, enable the government to compel foreigners to ‘reside at a particular place’, with no specified time limit. Combined with the government’s inaction, this has meant that the majority of illegal immigrants who have served their sentences remain indefinitely imprisoned instead of being deported. In some cases, foreigners have been languishing in Indian prisons for up to four decades.

The Indian courts are also yet to settle the question of whether authorities can legally detain any person they fail to deport. Under Article 21 of the Constitution of India, detention must be in accordance with due legal procedure. Since the Foreigners Act confers wide and largely unqualified powers, it is unclear if Indian authorities can lawfully justify prolonged detention for the time taken to complete the deportation and repatriation process. One solution would be for the courts to lay down a reasonable period test as in the United Kingdom, where the courts have construed authorities’ express legal power to detain foreigners to be valid only for the time ‘reasonably necessary’ to complete deportation formalities, with extended detention deemed illegal.

In limboThe defects picked out in this analysis of the prevalent Act and law are by no means exhaustive. Ironically, when the Indian Supreme Court had the opportunity to review the laws on illegal immigration in the case of Sarbananda Sonowal vs Union of India in 2005, it struck down the Illegal Migrants (Determination by Tribunal) Act of 1983 as unconstitutional, and in doing so reinforced the anomalies in the Foreigners Act.

It is worth noting that India has enacted the Repatriation of Prisoners Act of 2003 which allows for the repatriation or transfer of certain prisoners but only in very limited circumstances. To illustrate, the prisoner must request repatriation, which the Indian government must then consider and decide whether to act upon. Also, repatriation can only be effected with a ‘contracting state’ – that is, a country with which India has signed a specific treaty in this respect. Thus, this Act does little to alleviate the legal problems analysed above, and in any case fails to supplant the prevalent defective law.

For people likely to be affected by such defective law and procedure, politically symbolic pardons are irrelevant. People living on India’s porous western and eastern borders have no choice but to constantly negotiate these indeterminate boundaries, and border crossings are inevitable. But the law makes no exception for inadvertent trespassers and does not distinguish them from smugglers or traffickers. Even in the case of the latter, enforcement of stringent punitive laws has shown little deterrent effect over the years. Illegal immigration is symptomatic of various socio-political factors, rooted in India’s fractious history with its neighbours, and is consequently far too complex a problem to be ‘solved’ merely by devising and enforcing laws to restrict, punish, harass or incarcerate immigrants.

In these circumstances, the ‘goodwill’ chalked up by periodically releasing foreign prisoners is just as likely to be cancelled out by recurrent atrocities against civilians by border security forces. In January 2012, for example, leaked mobile-phone footage showing Indian security forces brutally assaulting an alleged cattle-smuggler from Bangladesh proved a flashpoint in Indo-Bangladeshi ties at a time when the two countries had been working to improve bilateral ties and resolve territorial and water disputes. Human Rights Watch has recently detailed other such cases of torture and extrajudicial killings on India’s borders.

As lawyers say, bad implementation is borne out of bad laws, and the prevalent law and procedure, which vests the executive with sweeping powers with very few countervailing checks, is bound to result in such instances of shocking government violence.

Several cases have come before the Indian Supreme Court seeking judicial review of the unlawful detention of foreign nationals. For instance, returning to the Bhim Singh case, on which the Supreme Court has been periodically issuing orders and directions since it was filed in 2005, a bench of Justices RN Lodha and HL Gokhale observed on 10 April 2012 that:

The government says many of the Pakistanis are still in jail even after they have served their sentences because they do not have proper identifications. It says these people cannot be sent back without ‘a proper proof of identity’. At least 250 Pakistani nationals are being held in Indian jails, some for many years, with one case involving a prisoner behind bars for more than 40 years.

The government’s response is baffling, since its justification for continued detention relies on its own inability to complete procedural deportation formalities. The purported lack of ‘proper proof of identity’ belies the fact that these convictions are based on an earlier determination of specific foreign nationality by the authorities. This defies logic and is unacceptable even by the provisions of the present law.

Other troubling complications of the present law concern the apprehension of entire families in ‘drag-net’ sweeps by the border security forces. The separate prosecution and detention of family members results in the prolonged separation of husbands from wives, brothers from sisters, and parents from their children. To make matters worse, India’s neighbours are often reluctant to accept the return of their deported citizens – a particularly acute problem with Bangladesh. Nor is it clear whether the detention of such persons in half-way homes or hostels amounts to incarceration or illegal curtailment of their freedom.

Any solution to these issues would need a comprehensive overhaul of the current law and procedure. This requires policy changes at the legislative and executive levels. Ad hoc diplomatic initiatives or even corrective judicial review of flawed legislation simply will not suffice. India’s prevalent laws on illegal immigration are marked by the sort of absurdity, unaccountability and bureaucratic failings described to nightmarish effect in Franz Kafka’s The Trial. Once entrapped in this system, the immigrant is lost in a brutal and uncaring legal system.

Perversely, it is precisely these unjustly imprisoned immigrants who are valuable as political bargaining chips, to be arbitrarily pardoned as symbols of diplomatic ‘goodwill’. As demonstrated by Pakistani President Zardari’s recent visit to India during which he raised the issue of the release and repatriation of Khalil Chisty – an 80-year-old Pakistani scientist currently serving his sentence in India on a murder charge – it is likely that these diplomatic gestures will be continually employed by various players in the Subcontinent. Yet meaningful guarantees of immigrants’ human rights will require reform initiatives that look beyond such politically motivated gestures to effect lasting legal change. And those reforms would entail true regional goodwill.

*Eds: This article initially stated the maximum period of imprisonment to be 5 years. We regret the error.

~ Aarthi Rajan is a practising advocate in the Supreme Court of India, and appears as counsel on behalf of Bangladeshi prisoners in India.